COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Baker and Overton ∗
Argued at Norfolk, Virginia
SMITHFIELD PACKING COMPANY, INC. AND
TRAVELERS INDEMNITY COMPANY OF ILLINOIS
OPINION BY
v. Record No. 0402-98-1 JUDGE RICHARD S. BRAY
FEBRUARY 23, 1999
U. W. CARLTON
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
William W. Nexsen; J. Derek Turrietta
(Stackhouse, Smith & Nexsen, on brief), for
appellants
Alan P. Owens for appellee.
Smithfield Packing Company, Inc. and its insurer
(collectively employer) appeal a decision of the Workers'
Compensation Commission (commission) awarding benefits to U.W.
Carlton (claimant) for an injury to his foot. On appeal,
employer complains that the commission erroneously determined
that the accident arose from employment and that the claim was
not barred by willful misconduct. We disagree and affirm the
award.
Upon review, we construe the evidence in the light most
favorable to the party prevailing below, claimant in this
instance. See Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.
App. 503, 504, 339 S.E.2d 916, 916 (1986). Factual findings by
∗
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
the commission that are supported by credible evidence are
conclusive and binding upon this Court. See Code § 65.2-706(A);
Rose v. Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60,
396 S.E.2d 392, 395 (1990). "In determining whether credible
evidence exists, [this Court will] not retry the facts, reweigh
the preponderance of the evidence, or make its own determination
of the credibility of the witnesses." Wagner Enters., Inc. v.
Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991) (citation
omitted). "The fact that there is contrary evidence in the
record is of no consequence if there is credible evidence to
support the commission's finding." Id.
The record discloses that claimant, while operating a
tractor trailer for employer and undertaking a right turn, had
driven "partially into the left lane" of the highway, a movement
necessary to make a "wide" turn, "in a tight corner." During the
maneuver, claimant observed a motorcycle approaching "a good
piece [from] behind" and to the right, which "just kept speeding
up," and stopped the truck to allow the motorcycle to pass. Once
beyond the truck, the driver, William Pettit, "stopped in front
. . ., got off his motorcycle, [and] came around to [claimant's]
door," "hollering . . . 'Didn't you see me?'" Pettit "pull[ed]
up on the truck trying to get in the door[,] . . . reached in and
grabbed [claimant's] arm . . . [and] started pulling [him]."
When claimant "fell out of the truck on to the ground[,] . . .
[Pettit] was trying to kick [him] and [they] started tussling."
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As claimant attempted "to get up [he] felt the truck roll over
[his] foot," resulting in the subject injury.
In awarding the disputed benefits to claimant, the
commission found that:
the need to occupy part of two lanes to
negotiate a turn in a tractor trailer and the
difficulty in seeing a small object such as a
motorcycle on the right side are all risks
peculiar to the claimant's employment as a
truck driver.
We also agree that the altercation was
business related. It is clear Mr. Pettit was
angry because he was almost run over by a
truck of which the claimant was the driver.
There is no evidence that Pettit and the
claimant knew each other or that the incident
arose from anything other than a potential
collision between a motorcycle and the
tractor trailer that the claimant was driving
for his employer.
The commission also concluded "that the claimant was not the
aggressor and therefore not precluded from receiving compensation
benefits . . . . Mr. Pettit precipitated the events that
culminated in the actual injury by stopping and approaching the
claimant in a very angry manner."
I.
"To qualify for workers' compensation benefits, an
employee's injuries must result from an event 'rising out of' and
'in the course of' the employment." Pinkerton's, Inc. v. Helmes,
242 Va. 378, 380, 410 S.E.2d 646, 647 (1991); see Code
§ 65.2-101. Employer does not dispute that claimant suffered an
injury by accident occurring "in the course of" employment, but
asserts that claimant failed to prove that such injury "arose out
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of" employment. It is well established that "[w]hether an
accident arises out of employment is a mixed question of law and
fact and is . . . reviewable upon appeal." Mullins v.
Westmoreland Coal Co., 10 Va. App. 304, 307, 391 S.E.2d 609, 611
(1990) (citation omitted).
In determining if an accident arises out of the employment,
Virginia applies the "actual risk" test, which "requires that the
employment subject the employee to the particular danger that
brought about his or her injury." Lipsey v. Case, 248 Va. 59,
61, 445 S.E.2d 105, 106 (1994) (citations omitted); see, e.g.,
Hill City Trucking, Inc. v. Christian, 238 Va. 735, 739, 385
S.E.2d 377, 379 (1989); Park Oil Co., Inc. v. Parham, 1 Va. App.
166, 169, 336 S.E.2d 531, 533 (1985). "Consequently, an accident
arises out of the employment when it is apparent to a rational
mind, under all attending circumstances, that a causal connection
exists between the conditions under which the work is required to
be performed and the resulting injury." Lipsey, 248 Va. at 61,
445 S.E.2d at 107 (citations omitted); see, e.g., R & T
Investments, Ltd. v. Johns, 228 Va. 249, 252, 321 S.E.2d 287, 289
(1984); Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 434,
437 S.E.2d 727, 729 (1993).
Accordingly, to be entitled to an award arising from an
assault, a claimant must establish "that the assault was directed
against him as an employee, or because of his employment."
Continental Life Ins. Co. v. Gough, 161 Va. 755, 760, 172 S.E.
264, 266 (1934) (citations omitted); see Reamer v. Nat'l Serv.
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Indus., 237 Va. 466, 470, 377 S.E.2d 627, 629 (1989); Park Oil
Co., 1 Va. App. at 170, 336 S.E.2d at 533-34. "'[A] showing that
the probability of assault was augmented . . . because of the
peculiar character of the claimant's job'" supplies the requisite
causal connection. R & T Investments, Ltd., 228 Va. at 253, 321
S.E.2d at 289 (citation omitted); Roberson v. Whetsell, 21 Va.
App. 268, 271, 463 S.E.2d 681, 683 (1995) (citation omitted); see
Reamer, 237 Va. at 470, 377 S.E.2d at 629 ("A physical assault
may constitute an 'accident' . . . when it appears that it was a
result of an actual risk arising out of employment.").
Here, Pettit's furious attack on claimant was triggered by
claimant's "need to occupy part of two lanes to negotiate a turn
in a tractor trailer and the difficulty in seeing a small object
such as a motorcycle on the right side," impersonal circumstances
directly attributable to the duties of his employment and clearly
satisfying the "arising out of" prong of compensability.
Employer's reliance on Hill City and Metcalf v. A.M. Exp. Moving
Systems, Inc., 230 Va. 464, 339 S.E.2d 177 (1986), is misplaced.
In contrast to the instant circumstances, claimants in both Hill
City and Metcalf failed to establish the requisite nexus between
the risks of employment and the assaults there in issue.
II.
Employer next contends that claimant is barred from recovery
because his seat belt was unfastened at the time of the injury in
violation of employer's safety rules. Code § 65.2-306 provides,
in relevant part:
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A. No compensation shall be awarded . . .
for an injury . . . caused by:
* * * * * * *
(5) The employee's willful breach of any
reasonable rule or regulation adopted by the
employer and brought, prior to the accident,
to the knowledge of the employee;
* * * * * * *
B. The person or entity asserting any of the
defenses in this section shall have the
burden of proof with respect thereto.
"As specified in Code § 65.2-306(B), employer ha[s] the burden to
prove that claimant's conduct, which caused his injury, was in
'willful' disregard of a reasonable rule established by employer
. . . ." Brockway v. Easter, 20 Va. App. 268, 271, 456 S.E.2d
159, 161 (1995) (emphasis added).
Whether the rule is reasonable and applies to
the situation from which the injury results,
and whether the claimant knowingly violated
it, is a mixed question of law and fact to be
decided by the commission and reviewable by
this Court. But the questions of whether an
employee is guilty of willful misconduct and
whether such misconduct is a proximate cause
of the employee's accident are issues of
fact.
Brockway, 20 Va. App. at 271-72, 456 S.E.2d at 161 (citation
omitted). Upon review of the record, the commission found that
claimant willfully violated employer's safety rule, but,
nevertheless, allowed recovery because employer failed to prove
that the violation caused claimant's injury. We agree.
As the commission noted, "seat belts are designed to lessen
or avoid injuries that occur during the operation of a motor
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vehicle." Claimant's injuries arose from a deliberate attack on
his person which occurred "after [he] was out of the truck's
cab," circumstances totally unrelated to those safety
considerations which underpinned employer's seat belt rule.
Accordingly, the commission correctly found that claimant's
injury arose from his employment and the attendant award was not
barred by willful misconduct.
Affirmed.
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